Defendant Contends Statute of Limitations Violation

The plaintiffs in this matter are Avivith and William Oppenheim. The defendants in the case are Mark Stumer, Joseph Viscuso, Mojo-Stumer Associates Architects, P.C. and d/b/a Mojo-Stumer Associates. The case is being heard in the Supreme Court of the state of New York located in New York County. Judge Charles Edward Ramos is hearing the case.

Case Background

The plaintiffs, the Oppenheim’s made a RICO claim against the defendants based on mail and wire fraud (white collar crime). These claims were in connection with renovations that were being done on their apartment. This claim has been dismissed. The Oppenheim’s then made a similar claim against the defendants in a first amended complaint. This complaint was also dismissed.

In August of 2007, Viscuso pleaded guilty to misdemeanor commercial bribery of the second degree for a crime that he committed between the first of May, 203 and the 10th of January, 2005. On the 27th of October, 2007, the plaintiffs were given leave to amend their complaint and to plead bribery based RICO cause of action.

The plaintiffs sought leave to amend their complaint again in November of 2008. The leave was requested so they could add a RICO cause of action based on allegations that the defendants had engaged in both mail and wire fraud during their renovation project as well as other renovation projects that the defendants performed.

This leave was denied by the court in September, 2009 because the crimes were not particularized in regard to the non-party homeowners and the property owners that were allegedly defrauded in the incident. This resulted in the allegations made by the Oppenheim’s in connection to the predicate acts were not considered when determining the pattern of racketeering that the defendants were accused of.

Case Discussion and Decision

CPLR 3025 allows leave for pleadings to be amended. It states that this leave can be freely given without prejudice or surprise to the opposing party. However, the court must examine the merit of the claims that are proposed. When the proposed pleading does not have any type of merit the leave must be denied.

The plaintiffs are seeking to add Tom Mojo to the complaint. The plaintiffs state that Mojo is a co-owner of Mojo-Stumer and has been since the action was started. They state that he was an active participant in the acts of bribery, mail fraud, and wire fraud along with the other defendants. The plaintiffs state that they did not have sufficient evidence to add him to the claim until July of 2008.

The defendants argue that this issue is time barred as per the statute of limitations that only allows four years for the facts of the case to be found. In support of their argument the defendants submit evidence that shows the plaintiffs knew of the RICO action as early as December of 2004.

It is felt that the defendants have demonstrated that there are no grounds for the awarding of sanctions or costs for frivolous conduct. For these reasons the motion to amend the third amended complaint is denied. The plaintiffs will not be able to add Tom Mojo as a defendant in the case. The cross motion that is made by the defendants for sanctions is also denied.

If you need to speak with a lawyer, contact Stephen Bilkis & Associates. Our offices are located in New York City. We have a team of lawyers who are willing to sit down with you and discuss your legal matter during a free consultation, whether you have been charged with bank fraud, credit card fraud or computer fraud. You may call us any time to set up an appointment.